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First Nat. Bank & Trust Co. v. Desaro

SEPTEMBER 17, 1963.

FIRST NATIONAL BANK & TRUST CO. OF EVANSTON, ETC., ET AL., PLAINTIFFS-APPELLEES,

v.

DAN DESARO, ETC., ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. JACOB M. BRAUDE, Judge, presiding. Affirmed in part, reversed in part and remanded.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

This is an appeal from a judgment of the Circuit Court adjudging the defendant, Dan Desaro, guilty of civil contempt for failure to comply with an order for payment of rent and for wilfully damaging the premises.

The facts leading up to the contempt order are as follows:

The defendants, husband and wife, entered into articles of agreement with the plaintiffs on December 20, 1959, for the purchase of a home in Glenview. Upon defendants' failure to make the required payments, the plaintiffs filed a forcible detainer in the Circuit Court and on December 5, 1960, obtained a judgment for possession.

On May 14, 1962, defendants filed a petition in the nature of a writ of audita querela seeking relief and alleging that although the plaintiffs had secured a judgment for possession they did not exercise their right to possession, but instead agreed with defendants to allow them to continue in possession; that the defendants had paid the plaintiffs $400 per month since December 5, 1960, and that not until May 5, 1962, were they served with a writ of restitution; that certain equities were present at this time that were not present when the possession order was entered on December 5, 1960, upon which order the writ was issued. It should be noted that writs of audita querela have been expressly abolished under the Civil Practice Act, Ill Rev Stats 1961, c 110, § 72. All relief heretofore obtainable is now governed by § 72. A petition under this section is the filing of a new action and is subject to the usual rules governing civil cases. Brockmeyer v. Duncan, 18 Ill.2d 502, 165 N.E.2d 294.

On May 29, 1962, the following order was entered from which no appeal was taken:

"This cause coming on to be heard on defendant's Petition in the Nature of a Writ of Audita Querela filed May 14, 1962, and continued to this date, and the Court being fully advised by counsel for the parties hereto,

"It is hereby ordered, adjudged and decreed that defendant's Petition be continued to June 29, 1962, and that defendants pay to plaintiffs the amount of $400.00 for May, 1962, and the amount of $400.00 for June, 1962, and that said payments be made in advance and that defendants vacate said property on or by June 30, 1962."

The defendants did not pay the rent fixed in the order of May 29th, but did surrender possession of the premises on the 22nd day of June, 1962, and delivered the keys to the premises on June 29th in the presence of the court.

On June 29, 1962, the plaintiffs filed a petition for a rule to show cause alleging that defendants had failed to make payments for the months of May and June, as required by the order of May 29th, and further that an inspection of the premises on June 25th "disclosed that the same had been defaced, marred and destroyed." An affidavit was attached, setting forth with particulars the damage complained of.

A hearing was then held and testimony of the parties taken. Plaintiff William A. Rychlik and the Chief of Police of Glenview testified as to the nature and extent of the damage which we need not specify here except to say that the damage was extensive and of a nature indicating it was done wilfully. The amount of damage was assessed at $7,000.

The defendant testified that he did not have the $800 with which to pay the rent as directed and that was the reason for his nonpayment. He denied that he, his wife or his son, had anything to do with the damage of the premises, asserting, "I had no knowledge whatsoever and I am absolutely shocked."

The Court then found defendant Dan Desaro *fn1 in contempt, sentencing him to thirty days in jail unless defendant restored the property to its original condition.

After the court had reached this finding, further argument of counsel was heard, the end result of which was that defendant agreed to a lie detector examination to determine whether he was telling the truth as to the damage to the property. This was to be in the nature of "a double or nothing gamble." The Court stated that if the results of the test indicated the defendant was truthful in his denial of the damage, the Court would reconsider its finding. If the results were that defendant was not telling the truth the sentence would be increased to sixty days or until restitution had been made.

The examiner's findings were that defendant was not entirely truthful in his denials. Thereupon, the court, after hearing evidence, entered a written order of commitment which recited, among other things, that the defendant failed to pay rent after the court stayed the writ of restitution at defendant's request, stating, "which wilful and contumacious conduct on the part of defendant, Dan Desaro, is in open defiance of the order of the court"; that the evidence established that "the defendants, including Dan Desaro, have wilfully, knowingly and contumaciously refused to comply with the orders and decrees of this court, and that the defendants, including the defendant, Dan Desaro, caused or failed to prevent the causing of the acts, conditions and damages which the court finds took place while the defendants, including the defendant, Dan Desaro, have hindered, impeded and delayed the administration of justice by this court."

The order of commitment directs that the defendant be committed to the common jail of Cook County, Illinois, and

"there to remain charged with the contempt of the Circuit Court of Cook County, Illinois, for a period of sixty days for a period of thirty days unless he shall purge himself of said contempt by delivery to the plaintiffs herein the sum of $800.00 as rent for May and June, 1962, plus the sum of $7,000.00 for damages caused by his wilful and contumacious conduct as aforesaid."

Defendant urges reversal of the contempt order for one or more of the following grounds. First, the order of May 29th is too vague, indefinite and uncertain to support a basis for a contempt finding. Second, damages may not be awarded by the judgment in a forcible entry and detainer case particularly since there was no pleading in the nature of a joint action proceeding seeking action for damages. Thirdly, the order finding defendant in contempt is actually imprisonment for debt in contravention of Section 12 of Article II of the Constitution of the State of Illinois.

The defendant was found guilty of contempt of court for two specific acts, namely, his failure to pay the $400 for the months of May and June and for wilfully damaging the property. We will consider first whether his failure to pay the $400 as ordered by the Court could result in a contempt finding. In determining the propriety of orders in enforcement of contempt proceedings, it is necessary that each case be viewed in the light of its own peculiar facts. Wick v. Wick, 19 Ill.2d 457, 167 ...


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